Kelly v. Slack

LEWIS, J. In 1890 Christine Erickson, unmarried, executed her last will and testament, by which she devised to her mother, brother, sister, and two nieces each the sum of $500, and to John Kelly, of Minneapolis, plain [493] tiff herein, $3,000; naming another niece her residuary legatee. She married plaintiff in 1890, and died in Hennepin county in 1900. The will having been admitted to probate, plaintiff duly renounced the legacy under the will, and elected to take under the statute, as the surviving husband. Only one claim against the estate was filed, and that in the sum of $93.38, whereupon the administrator petitioned the probate court for a license to sell all of the real estate of which the deceased had died seised, for the purpose of paying the debt proved, the legacies mentioned, and the expenses of administration. To the granting of this petition plaintiff objected. .The probate cpurt having directed a sale of the entire estate for not less than its appraised value, plaintiff appealed to the district court, and judgment was entered therein affirming the order of the probate court. The grounds upon which the order appealed from is attacked are (1) that, under the statute, plaintiff having renounced the will, and the deceased having left no children, nor the issue of any deceased children, the whole estate descended to him, as the surviving husband, to the same extent as if the wife had died intestate; (2) that if plaintiff’s interest as the surviving husband upon renouncing the will was an undivided one-third of the estate, then the title to that part became vested in him upon the decease of his wife, subject only to the payment of debts and the expenses of administering the estate, and in no event could his interest be' sold to pay the legacies, and in any event an equitable partition was possible without a sale, and the sale ordered was unauthorized and void. 1. An answer to the first proposition requires the construction of sections 62, 63, and 64 of the probate code (sections 4469, 4470, 4471, G. S. 1894). Under the first part of section 4471, the surviving husband is entitled to an undivided one-third of other lands than the homestead of which the deceased was possessed at any time during coverture, free from any testamentary or other disposition thereof to which he had not assented in writing, etc.; and, under subdivision 2, if there be no children and no lawful issue of any deceased child, such surviving husband then takes the whole estate. If in this case there had been no will, plaintiff would have received the entire estate, there being no children; but there was a will which devised the entire estate, and accordingly plaintiff was put upon his election as to whether he would take under the [494] will, as a legatee, or take the undivided one-third. These provisions are plain and explicit. There is no foundation for the argument that, in renouncing the will plaintiff became possessed of the entire estate. He is expressly limited to the provision made in the statute, and his interest is that of an undivided one-third, subject in its proportion to the debts of the estate and the burden of administration. 2. Section 4527 provides that, when there is not sufficient personal estate to pay all the debts and legacies, the probate court may order the sale of the real estate, or so much thereof as may be necessary to pay the same. The probate and district courts construed the statute to confer authority to order a sale of the entire estate upon the ground that an equitable division of the same could not be made. Sections 4575-4580, G. S. 1894, were amplified and amended by chapter 89, p. 91, Laws 1901. Section 4578, before the amendment, authorized the court to license a sale of the whole estate, or such part thereof as might be deemed necessary and most for the interests of all concerned. The following clause was added by the amendment: Or if it appears to the court, without regard to the necessity for such sale, that it. would be for the best interests of the estate of the decedent, and of all persons interested therein, that the real estate described in the petition, or any part thereof * * * be sold, the probate court may license a sale of the same. Section 4580, which authorizes an order of sale after a hearing, was extended and amended in a similar manner. The real estate involved consisted of three separate parcels, viz., a lot and brick building of the scheduled value of $4,500, mortgaged for $1,500; 28 feet of lot 1 and north 10 feet of lot 2, block 4, Willis’ Addition, with a two-story dwelling house, scheduled at $3,000, mortgaged for $800; the west 44 feet of the east 110 feet of lot 1, block 1, Westfall’s Addition, value $350, vacant and no incumbrances. According to the evidence, the entire rentals amounted to $670 per annum, and interest and taxes to about $340 per annum. The only evidence introduced upon the question of the advisability of selling- the property as a whole was on behalf of defendants, and one expert witness testified that the property could not be divided to the interest of the parties, and an undivided interest in real estate in Minneapolis would not command a [495] ready market, and would result in a sacrifice of the property; that it would not bring as much sold undivided as if sold as a whole; and that it would be for plaintiff’s interest to sell the entire property. It is apparent that it was unnecessary to sell the entire estate in order to raise sufficient money to meet the indebtedness and expenses of administration. The unincumbered and vacant lot would doubtless have been sufficient for that purpose, and the judgment appealed from cannot stand unless it is sustained upon the right to sell the whole estate because it could not be equitably divided between the holders of undivided interests. Section 4653, et seq., provides for the partition of real and personal property among the heirs, devisees, or legatees, but no provision is made for a sale thereof in case an equitable division cannot be had. No doubt, authority might have been conferred by the legislature upon the probate court to cause a sale where an equitable division was not attainable. Such powers are certainly incidental to the administration of estates, and the statute above referred to, as amended by the act of 1901, may be sustained upon the theory that a sale is a proper remedy, incidental to administration in those cases where equitable division cannot be had, and a sale is necessary to provide funds with which to pay specific legacies. The use of the term, “for the best interests of the estate and of all persons interested therein,” does not necessarily imply that it must be for the best interests of each and every party to the same degree. Our view of this statute is that it has reference to all interested parties, taken as a whole, and that, considering the interests of all, the court shall make that order with reference to the disposition of the estate which will accomplish the least injury and best serve the interest of all. To this extent each person who becomes a beneficiary under a will or under the law is subject to such necessary changes in the character of his interest as are required by the administration of the estate. The plaintiff in fact suffers no hardship. If the statute were not applicable to enforce a sale of -his one-third interest, the purchaser of the other two-thirds interest at a sale to provide for the legacies could enforce a sale in partition proceedings in the district court under section 5770, G. S. 1894, et seq., and the purpose of the probate statute as amended seems to have been to confer the same powers upon that court. True, these are extensive powers to be conferred upon a probate [496] court, and may be subject to abuse; but the interests of legatees under the will are just as much entitled to protection by a fair and equitable distribution of the estate as is the interest acquired by an heir, and the usual means provided for a review of such proceedings afford a sufficient safeguard against an abuse of the powers conferred by the statute. The evidence is sufficient to sustain the order of sale, considering the nature of the property, the incumbrances, and difficulties attending partition. Judgment affirmed.